If you're a gamer, you've probably already heard about Sam Keller's case against EA Sports. He has created a class action lawsuit pursuing EA Sports and the NCAA for compensation in regards to the NCAA Football and Basketball video games using unmistakably obvious player likeness for profit without compensation. Per the AP:[Keller is] saying the video-game maker wrongly uses the names and likenesses of athletes and the NCAA sanctions the practice.Never mind that Keller is by most accounts a void of talent. How could his point be argued as false? As Michael Cunningham of the Sun-Sentinel points out:Keller's lawsuit was filed Tuesday in federal court in San Francisco as a class-action, suing on behalf of all college athletes depicted in the NCAA Football and NCAA Basketball video games made by EA Sports.
The virtual players have the same height, weight, build, skin tone and biographical information as their real-life counterparts. They are from the same state, in the same class and appear in the same place on the depth chart.I purchased every version of the EA's college football game series from '98 to '07, and I've logged an embarrassing number of hours at it. I still love it. But it is what it is. EA is clearly marketing the likeness of these players as this Fanhouse article showcases.
The similarities can go right down to sweatbands, arm sleeves and face visors. This holds true from the biggest stars from power schools down to the relatively anonymous players at mid-majors.
The one place where the lawsuit loses me is the idea that EA Sports should require security controls which prohibit the uploading of complete team rosters from third parties or by individual users. I personally have no problem with this sort of post-purchase game modification. When an individual takes the time to manually name his players, it's a labor of love...an homage to his team of choice.
If that modification is being done in mass at the expense of a player not being compensated for the use of their name in a product, then Keller's beef is with the after market roster maker. Not EA Sports. Unfortunately for Keller, the dude making that roster available to you via sketchyrostersforvideogames.com probably has nothing to give you if you sue him.
I wager that this one will end with EA Sports creating a charity / scholarship fund that somehow benefits student athletes.
See Also:
-- Sam Keller is right - FanHouse
-- Another stab at the NCAA - Sports Economist
-- A good but unwinnable point - Topeka Capital-Journal
-- Keller Sparks Debate - Big Red Network
PWD
(Image: I think I made that one last year)
12 comments:
I am not an attorney, but it seems wrong that the NCAA can make even more money off these guys by licensing to EA Sports.
I am not a fan of paying athletes a salary, but it seems like the sale of shirts, jerseys, etc should be treated differently. Perhaps a post collegiate fund for the athletes given to the athlete once his (her) eligibility is over; heck I would even go for requiring the earning of a degree.
There is a similar issue with EA using the likeness of really old NFL players without paying for their images. The players won a $28.1 million judgment against the NFL, not EA.
It's classic NCAA hypocrisy.
The easiest solution to this would have been for the NCAA to add wording to their scholarships where an athlete basically agrees to license use of name and likeness to the NCAA as part of the consideration for the scholarship. It is a simple paragraph that you probably have agreed to by attending a UGA event. (It is probably on the back of your ticket to any UGA event.)
However, from the article, "NCAA bylaws prohibit the use of the names and likenesses of athletes for commercial purposes."
Because the NCAA won't admit to actually using player names and likenesses for commercial purposes (it is a silly coincidence that they were selling #24 jerseys...not any money grab by the NCAA to capitalize off the likeness of one if its athletes, right? ...), they probably have refused on ideological grounds to put any sort of language like this in the scholarship agreement.
Whoops. I'm sure somewhere a counsel at the NCAA that has suggested adding a clause like this to scholarships but has been denied by smug academics b/c of 'principle' is laughing his or her a$$ off...
I don't think the NCAA "prohibits" the use of names and likenesses for any ideological reason, but for legal reasons. They feel that they can point to this clause and say "see, those aren't likenesses, we don't allow it; if any likenesses are being used, it's not our fault."
It is also unclear that inserting such a clause in the scholarship agreement would be upheld. If such a clause were inserted in all scholarships and later challenged, it is likely that we would end up with some states upholding the clauses, with others striking them down.
PWD-
Changing the names is hardly a labor of love. There are several businesses engaged in doing this and then selling the rosters. While they may enjoy what they are doing, it is hardly a labor of love.
you can read the complaint here, if you'd like:
http://www.hagens-berman.com/files/Filed%20SComplaint%200505091241648221078.pdf
It is absolutely clear that he has an actual suit
He is a douchebag too but a correct douchebag in this case
Sam Keller also puts razor blades in Halloween candy. Thanks for ruining the fun for everyone, jackass.
All i know is this is going to ruin my NCAA Football games.
Fantastic work Sam Keller, you got your one moment in the spotlight because you couldn't do it on the field.
Video games are frequently a target for criticism and legislation. As a result, the industry is overwhelmed with lawyers. Keller may have a suit, but it's likely not against EA. Games have been doing this for decades without the courts coming down on them. I remember a baseball game in the early 90's that had a left-handed pitcher for Atlanta that had an awesome changeup that went by the name "Lavine." As money hungry as baseball was back then, I'm pretty sure they would have challenged such a gross use of a player's likeness without just compensation. The courts probably have upheld the idea that a players likeness can be used as long as its not his name or face without express permission. So, while this seems like an open-and-shut type case, EA may have precedent on its side.
Realist,
In the early 90s you couldn't see the players face. Now, you can. I was watching the new MLB game for XBox 360 being played on a big screen HDTV above the bar. I was probably 30 feet from the screen and didn't realize it was a video game for a few minutes.
The MLB network was simming portions of a game to make some sort of point.
The reason the players will increasingly have a case is how much more increasingly like the use of their face the games are getting.
How about just leave it up to the individual players? "Can EA use your image for free?" Only about ONE HUNDRED PERCENT of players would let their image be used, so they could play the video game as themselves.
Courts do change their minds. I recall a few instances of this happening over the course of history.
1) realist: "may", "probably", etc not an overwhelming argument.
2) Josh: I doubt 100% would say yes. I bet more would say no. This would be a way for the athletes to make some spending money and they are smart enough to know it. Would you really be so stupid as to let someone use your image in such a way that it would generate millions in revenue for the company, the NCAA, the colleges and not you? It is one thing to trade playing a sport for a scholarship; it is another to use me for pure profit without some sort of compensation.
This makes me think of the Seinfeld episode with Kramer and the cologne/perfume.
http://ncaafootball.fanhouse.com/2009/05/12/examining-the-ncaa-and-ea-lawsuit-head-down-the-rabbit-hole?icid=sphere_newsaol_inpage_fanhouse2
Interesting considerations.
I do not think paying the players is that big of an issue since the players were not the ones who violated the rules in this matter.
Previously I suggested waiting until they are done with college or get a degree. The more I thought about it, the former might be okay, but not the latter. I am not sure what the value of a college degree is to a person who plays a few years of pro football anyway. Also, getting a degree has nothing to do with this matter. Bill Gates never got that college degree; Jimmy Fallon just did. Gates has not been held back and Fallon is not any funnier.
I almost hope that there is no class action suit. It would be far more fun to see the NCAA have to deal with hundreds of individual lawsuits. Maybe the tobacco lawyers can do something good for a change.
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